Peterporn: Entering the Twilight Zone...

I have been tossing up all day, no pun intended considering the subject matter, about whether to write a piece on the first closed hearing of the Nazriel "Ariel" Irham sex tape distribution trial. The first hearing is always as boring as watching the grass grow. These hearings rarely include any new charges or tid bits of information (aka alleged evidence) relating to the alleged crime. These hearings are pretty much as simple as reading out the indictment with respect to what the prosecution thinks it has.

What some readers might not be aware of is how trials are conducted in Indonesia. Trial hearings are weekly affairs. This means that a hearing is held each week until the case is completed. A trial is not conducted in say a block of three weeks or six months or however long the prosecution might believe the case will take. Therefore, today's hearing was the reading of the indictment and then an adjournment until next week. Very much a case of "same time, same bat channel, and see ya next week".

What we did learn is that the prosecutors are shooting for 12 years and a fine of around IDR 6 billion. If there is any justice to be had in this case, the the case will be dismissed and with prejudice. It is after all a couple of sex tapes. It is too bad the police, the public prosecutors, and the Islamic hardliners can not join forces to root out some real evil like the scourge of corruption, for example.

On the justice front. How can there be any, when the other two participants in the tape themselves are not on trial and do not appear to be destined for trial. Although, the Islamic hardliners as represented by Hirman Firdaus of the white-robed thug brigade want to see Cut Tari the married star of one of these amateur porn flicks to be stoned to death for adultery. This is despite the fact that the police and the public prosecutors have not been able to establish a timeline for the production of the tapes or where they were actually produced.

The other piece of information that we learned from today's game of charades was that the prosecution is angling for a conviction based on the allegation that Ariel provided the facilities to distribute the sex tapes on, and over, the internet. Good luck with that. These prosecutors have not even been able to establish some other pretty basic "facts" as noted in the previous paragraph.

The next trial hearing should provide us, closed door or not, with how the defense case is organised and structured. Ariel is represented by O. C. Kaligis. Kaligis is an excellent lawyer of considerable experience and standing in the legal profession.

I am wondering if, and when, the [in]famous sex tapes will get an airing at the trial. After all, it is the sex tapes that are the crux of the case here. It is only fair that the judges see what went on in order for it to become worthy of distribution.

Oh, the title to this post...I really do not see why this case is going to trial. It certainly has a "twilight zone" feel to it. Police and prosecutors have pursued this case for all the "wrong" reasons, at least in my opinion.

Whiteness Theory & Post-Racialism...

This post is probably worthy of a PhD thesis, and perhaps I will write it one day (a PhD thesis is something that is definitely on my bucket list). I might have to decide whether I write it from an education perspective or a legal / justice perspective (then again, I might just combine both and be much less focused).

I have always been interested in these ideas, but strangely enough had not really named them and related them back to theories in the field. In that regard, I have a recently completed subject on diversity for setting readings that 'forced' me to read in more detail about these ideas. The reason I had been thinking about these ideas previously related to both Australian and Indonesian contexts.

In the Australian context it really related to criminal justice and the over-representation of my indigenous brothers and sisters in the court and jail systems (and whether education had a role to play in redressing this sad imbalance).

In the Indonesian context it was really about whiteness theory co-opted into an idea of Indonesian-ness theory. Simply, the idea of honorary Indonesian-ness or Indonesian-ness being the norm to some degree. This one is a much more complex one than whiteness theory because of the way that Indonesian-ness is constructed in the first place. Indonesian is a melting pot of diversity and this is recognised in the notion of Bhinneka Tunggal Ika or Unity in Diversity (although it might be argued that the concept might be better understood from a literal reading of the Javanese that it comes from as being unity from diversity). To be honest, I had also been thinking about the idea of Indonesia-ness with respect to Barack Obama, the US President, and the reverence ordinary Indonesians have for the man and expectations of him from three or so years of living in Indonesia as a child.

This is intended to be a short post. But, hopefully it might inspire a few comments instead of just the usual page views that my posts get.

So, here is the basic idea. Whiteness Theory really is about "whiteness" being the norm. The kicker is that you do not have to be white, but merely accepted as being white. Hence, whiteness is not about race, it is about cultural values and the perceived power and opportunities that being 'white' brings. Yet, it is arguable whether whiteness is an overt or covert theory. The idea that it is covert rests in the manner in which race is talked about, this is in spite of the idea that whiteness theory is not about race, because more often than not it is race which premises the discussion.

I guess what I have been thinking about is the convergence, or lack thereof, between whiteness theory and this idea of post-racialism. This came more to the fore with the election of Obama to the White House, as people started falling over themselves, like Oprah Winfrey for example, in order to claim that this was the start of something big; a post-racial America. Personally, I would need to do a lot more research, but first impressions are that these people are kidding themselves in a reality sense. I understand conceptually what post-racialism entails but I wonder whether the election of a person of mixed race to the presidency of the US is in fact a sign that post-racial America has arrived.

If whiteness theory is about power and privilege then could it be argued that Obama's rise to the presidency fits within the parameters of whiteness theory where arguments of power and privilege prevail?

I do wonder whether the election of an Indonesian of Chinese or Indian or Arab descent would signify a post-racial Indonesia? But, I think before I can wonder that, I tend to wonder whether Indonesia can reach a place of tolerance of, and for, minorities, and really live up to the idea of unity in diversity.

As you can see, there is real potential for me to add to the abundant literature already out there on this topic. Oh, and no apologies for the disjointedness of this rambling post, it remains an unedited ramble of ideas, thoughts, and concepts that are bouncing round in my head.

Ho hum...one more university assessment task to go.

Joanna Alexandra -- An Indonesian Playboy Model...

The recent sentencing, on appeal, to two years in jail for the former editor-in-chief of the Indonesian version of the iconic Playboy Magazine, Erwin Arnada, triggered a search of my photo archives. This search turned up some pictures of Joanna Alexandra.

I would like to relate a tale of how I know her or something similar, but unfortunately I cannot remember her. However, there was once talk that she was, at least fleetingly, in one of the lectures I was teaching at the faculty of law at the University of Indonesia. Maybe I can claim some proximate fame?

Anyways, I figured, why not post them so that everyone can enjoy them? Besides on the porn scale, even the Indonesian porn scale, these images do not rate at all. As I have said many times before, the Indonesian version of Playboy Magazine really was one that you bought for the articles.

American Violet...

I have not done a movie review for a while. There is good reason for this, I have not watched any movies! Doing a Masters is always a lot of work I am told. I am doing it in accelerated mode, so I am doing a 150% load. Anyways, enough with the excuses and back to the review.

I am not sure what made me pull this movie out of the pile of 50 or so that arrived home with my parents after their recent jaunt to Bali. But, I like Will Patton as an actor, and I saw his mug shot on the cover of the DVD and thought, why not? Besides, there was the added attraction of it being supposedly based on real events. And, it was about how the law can be used and abused by those with an agenda. I did a law degree because I wanted to help those less fortunate and those who always become the victims of those in power who seek to use and abuse the power that they have been given.

The film was American Violet.

The film shines the cold, hard spotlight on race relations in the US. It is particularly scathing in terms of the portrayal of power and how that power is used to racially profile and discriminate. It was also interesting to hear that in the US somewhere in the vicinity of 85% of all criminal cases end with a plea deal (personal note: go check this out). It is a scary statistic in that plea deals often force innocent people to plead to crimes they did not commit in order to avoid a much harsher penalty. Yes, I am sure there are figures out there that show that people who have committed serious crimes exploit the plea deal system to garner a lighter sentence than they deserve. But, it is my review!

For me, this was an excellent film. It was powerful and simple in its depiction of racism. It was equally powerful in terms of its message, little people can sometimes beat the odds and win. It is not a movie that everyone will enjoy, but you cannot please everyone all of the time.

The film is based on a raid of a poor black housing project in Arlington Springs (Texas) in 2000. The raid for drugs was based on the grand jury testimony of a single informant. The raid ensnares single mum, Dee (Nicole Beharie). Dee is accused of selling drugs in a school zone which sees her facing somewhere between 15 and 26 years in prison. Ultimately, the District Attorney offers her a plea deal; a ten-year suspended sentence. To get this deal she must plead guilty. A guilty plea has significant repercussions, not only is Dee a felon if she does, but she is also likely to lose any benefits that she receives. Dee chooses to fight.

However, she is not in this fight alone as the American Civil Liberties Union (ACLU) appears and offers to take her case as a means of highlighting the racist nature of the raid. In essence, the case becomes a significant test case on racial profiling and the use of single informants in grand juries to secure arrest warrants, at least in Texas.

This is a movie with a feel good ending. Although, the end credits include a note that the District Attorney who is responsible for Dee' predicament manages to secure re-election to the position of DA. So, despite the feel good nature of the ending, the reality remains that obviously a vast majority of the voters in the relevant area seemingly agree with the vision of the DA.

I recommend the movie (not that this means anything in the grand scheme of things). It is an enlightening and entertaining 103 minutes.

Penis Enlargements and the Indonesian Police Force...

A recent article in The Jakarta Globe draws out some interesting links between penis enlargement, the Indonesian National Police Force (Polri), the separatist movement in Papua, and serving the public. It seems that any man wanting to join up and serve the public as a police officer in Papua will be required to answer a question about whether or not they have had a penis enlargement.

The argument according to the Police Chief, Bekto Suprapto, is that an enlarged penis is a problem during training (and presumably during service). I am sure, if pressed, Suprapto would be willing to elaborate as to exactly what sort of training the police do in Papua that makes an enlarged penis problematic.

However, this poses some interesting questions for recruitment officers as they search to 'enlarge' the ranks of serving police officers. First, is there a set of penis size standards that prospective candidates must meet in order to proceed through the selection process? Then the obvious questions tend to, what is the deal for men who, without treatment, are already well-endowed? And finally, is there a corresponding set of size related criteria for women and the size of their breasts?

In any event, if they do not make the grade as police officers then there is a good chance they might be snapped up by the porn industry where it seems that size is respected as an asset rather than an obstacle.

So, what about the court decision that seemingly reinstates the case against Chandra M Hamzah and Bibit Samad Rianto?

Justice -- Indonesian Style?

Sometimes there are certain events that just leave you shaking your head and saying, "what were they thinking?"

This is one of those moments. In the grand scheme of all things Indonesian the theft of three pods of cacao beans would seemingly rank fairly lowly on the justice meter. This is especially so considering the current turmoil engulfing Indonesia's law enforcement agencies and government with respect to the KPK vs. the police and AGO spat, and the developing mess known as the Bank Century scandal. However, it seems that if you steal three beans then justice is swift, but if you attempt to bribe public officials and / or participate in the suspect use of IDR 6.7 trillion then justice might not be so swift.

Now this is a story of Minah, a 55-year-old woman, who lives in Banyumas, and who helped herself to three cacao bean pods from a local plantation. The total value of her huge haul was about IDR 1,500. To give my non-Indonesian readers an idea of value here, that is about USD 0.15 or AUD 0.18. This is hardly the crime of the century, particularly in the Indonesian context.

However, the plantation and the law enforcement agencies in the relevant area decided that this was the perfect crime for making an example and educating the public about criminal activity, and the need to stop crime in its tracks. I am sure that there are many others out there who would find it hard to believe that this is the crime to educate the masses about the ills of criminal activity.

The Law and Human Rights Minister has gone on the record to suggest that this case is an embarrassment to Indonesia and her law enforcement agencies. Specifically, the Minister believes that law enforcers need to embrace humanitarian principles. Indeed they do, but they should not also turn a blind eye to criminal activity. The question is really one of degree, and particularly how this event of theft could have been dealt with in a more appropriate matter.

Ultimately, the District Court at Purwokerto handed down a 45-day suspended sentence. The sentence stipulates that Minah cannot commit a similar criminal offense within three months from the date of conviction. If she does then she will be required to serve her 45-day sentence.

Probably what the Minister should be more concerned about is that Minah represented herself. The law requires that all people appearing before an Indonesian court be given the opportunity to have legal representation. If an individual is incapable of paying for that legal representation, then it is to be provided on a pro bono basis. And, perhaps even more concerning is the assertion that Minah was encouraged to plead guilty to the crime without legal representation present as the prosecutors stated that it would be easier for her and her treatment would be more lenient.

I do not have a problem with the idea of plea bargaining. However, this needs to be done in a manner that people who have no experience of the legal system are not rail-roaded into making confessions in order to see leniency.

A suspended 45-day sentence is a little harsh for what amounts to an IDR 1,500 theft. This could have been easily settled out of court by getting Minah to pay compensation to the value of the seeds taken. The reason she provided to the court as the motivation for her crime was that she wanted to plant the seeds in order to grow her own cacao plants. Assuming this were true, then the plantation firm missed a perfect opportunity to put together a community cacao development program where the company provides seeds to poor locals, and they could have made Minah the first recipient of that community initiative.

Yet, the infinite wisdom of the pencil-pushing corporate types was, "this is a perfect opportunity for us to educate the masses about small-scale theft!" And, I might add, the perfect opportunity to show the community that we are here only to rape and pillage your land, make large profits, and then leave you with nothing, which sounds a little bit like a public relations nightmare.

With cases like Minah's there is little wonder that Indonesians are generally not convinced that the justice system works fairly for all citizens.

Syekh Puji Goes To Trial (and gets acquitted)...

Syekh Puji went to trial in the Ungaran District Court charged with committing sexual abuse on a child. The sexual abuse charges stem from his marriage to an underage girl. I have written about this case elsewhere, and you can find those posts here.

In essence, the Syekh was facing charges relating to violations of Articles 81(2) and 82 of the Child Protection Law and Article 290 of the Indonesian Criminal Code. I also believe that there are charges relating to a violation of the Marriage Law. I have not seen the indictment or read the verdict dismissing the case.

However, the presiding judge in the trial, Hari Mulyanto, dismissed the prosecution case because, in his opinion, the indictment was incomplete, vague, and by default, flawed. Consequently, Mulyanto ordered that the Syekh was free to go and resume his life free of the charges laid. In that sense it is not really an acquittal, because in a technical sense the judge has issued a preliminary ruling stating that the case cannot go forward to trial because the indictment does not make the grade.

Prosecutors, apparently, intend to appeal the verdict. But, what is interesting was that the prosecution seemed to indicate that they will go away and improve the indictment. This suggests that the first time out the prosecutors did not bother to cross all the "t"s and dot all the "i"s.

Appeals in Indonesia generally require that there be new evidence available that was not available at the time of the trial or that there has been an error by the judge(s) in the application of the law. Unfortunately, prosecutors failing to do their jobs is not new evidence or an error in the application of the law.

There seems to be little doubt that the Syekh married an underage girl, and there seems little doubt that he consummated that marriage after her first period, what seems to be in doubt is the ability of the prosecutors to close the deal on this case.

Pro Bono Legal Work in Australia...

There are about 50,000 lawyers in Australia and about 5,700 of those have signed onto the National Pro Bono Resource Centre to get lawyers to do 35 hours of pro bono work every year. This is a significant jump in lawyers signing on. The previous year saw 2,900 lawyers participating.

Well, figures released this week shows that these lawyers did some 183,771.5 pro bono hours or almost AUD 46 million of pro bono work. This figure is costed at AUD 250 per hour which is probably lower than the average hourly charge out rate for most. The number of hours is up from 113,356 hours of the previous year.

It is worth noting that of the 44,300 lawyers not signed up to the program there are very many who do pro bono work as well. Therefore, it is fair to say that Australian lawyers are making sizable pro bono contributions as the rule rather than as the exception.

Governments never have the money to properly fund legal aid services, and therefore pro bono work serves to offset some of the lack of funding. The other primary beneficiaries of pro bono work are charities and non-government organizations.

Public interest law like legal aid is always challenging and pro bono work is always a good way to vary your routine and to keep your skills up to date in areas of law that you might not practice on a regular basis.

(Cartoons courtesy of here)

Something For the Lawyers...

Really? Are all lawyers going to hell?

Indonesian and Malaysian Relations

It seems that the Malaysian Ambassador to Indonesia has a few issues with the manner in which the Indonesian press cover Malaysia. Specifically, the issue is that the Indonesian press are, more often than not, portraying Malaysia in a negative light.

The focus of much of the Indonesian media when it comes to Malaysia relates to abuse. The abuse of Indonesian migrant workers, and more recently of the social-climbing starlet wanna be, Manohara Odelia Pinot.

The Ambassador's beef is that violence towards Indonesian migrant workers does not only happen in Malaysia. This is true. The Ambassador is right in pointing out that violence against Indonesia's migrant workers also occurs in Saudi Arabia and even in Indonesia before the prospective migrant workers get a chance to be abused overseas. This hardly seems like a viable excuse to cut Malaysia some slack.

The Ambassador, in essence, states that it is not Malaysian government policy to allow Indonesia's migrant workers to be abused on arrival in Malaysia or for the course of their working placement. This would seem to be a no-brainer, as if it was a government policy then the media coverage would undoubtedly be even more negative than it is now.

According to the Ambassador, anyone who is alleged to have abused someone, Indonesian migrant workers included, would be charged and prosecuted, and if convicted punished to the full extent permissible under Malaysian law.

The reason this is an issue is that Indonesia has ceased sending migrant workers to Malaysia until the issues relating to abuse are more fully resolved, particularly with respect to protections afforded to vulnerable migrant workers. A deal on this matter seems far from assured at the present point in time.

However, where it gets really interesting is that the Ambassador offers up the following example of why the coverage by the Indonesian media is negative: "Please don't portray us as bad people. Fifty percent of prisoners in Malaysia are Indonesians, why do we never hear about this in the news?"

Reading between the lines here; Indonesians that come to Malaysia are bad people because 50% of the total number of prisoners in Malaysian jails are Indonesians. So, we are clearly not as bad as Indonesians. Although, an alternative reading might be that Malaysians have a real problem with Indonesia and Indonesians, and whenever they get the chance will preferably put an Indonesian in jail.

I would have figured that good news is a two-way street. What is good for the goose has got to be good for the gander as well. Perhaps if Malaysian media reported a more balanced picture of Indonesia then perhaps Indonesian media would be equally forthcoming in portraying a more balanced picture of Malaysia.

Can Rape Be A Joke? -- The Follow-Up...

In a follow-up to an earlier post that discussed this particular case and whether or not rape could be a joke, the jury has come back with a verdict. The rape itself might not have been a joke, but it seems that the jury has been convinced that it was accidental. The jury consisted of six men and six women and they took just shy of two hours to reach their verdict of "not guilty".

The prosecutor, Kieran Gilligan, instructed the jury that they must be satisfied that there was penetration, that is was deliberate, that there was no consent, and that Naggs knew that the man was not consenting to any penetration.

The man who claimed that he had been raped was a willing participant in the events and had said something to the effect of "Be gentle. Don't do it too hard." I am guessing that probably sealed it for most of the jurors.

The jury acquitted Naggs and she is free to return to what she has apparently been doing for the past thirteen years, and doing quite well by all accounts.

So, the lesson from this case would seem to be that rape is not a joke, but in a very particular set of circumstances a rape could be accidental and therefore not rape. I think.

Malaysia, Caning, and Beer -- Part II

It seems that the decision of the Sharia Court in eastern Pahang State to cane a Muslim model, Kartika Sari Dewi Shukarno, for having a few beers in a nightclub has not been greeted with universal approval in Malaysia. The debate centers on the idea that convictions and sentences like this are rare in Malaysia where alcohol is widely available for consumption. There is also a belief that where an individual sins against their religion in this manner; drinking alcohol when it is forbidden, has sinned against God and therefore it is God who should mete out the punishment.

I have always argued that for those of us who sin against our religions or our Gods will be punished by our respective Gods when the time comes. There is no need for us insignificant human beings to get involved and take over the primary punishment role from God. Let's face it, I have some serious explaining to do come judgment day:

God: So, you spent your life doing good things and helping people less fortunate than yourself. You contributed to making the world a better place. But, not one day in your life did you acknowledge me or my existence, in fact you told everyone who asked that you did not believe in God. You told everyone that you were doing it because you were a good bloke and it was the right thing to do! Therefore, here's my question for you now, "what you got to say about that?"

Me: God, that is a good question. To be perfectly honest, I just figured I would be worm food and that would be it. I had never really contemplated having to come back and justify myself to you. But, God, here's my question to you, "why did you not reveal yourself to me in a more tangible way that would have made believing in you a whole lot easier proposition rather than irrational faith?"

You can see where this conversation with God is going.

There is little doubt that the punishment is harsh. Interestingly, it could have been a whole lot more harsh as the law allows for up to 40 lashes with the rattan cane. And, in all likelihood it is not going to deter those Muslims in Malaysia that want to drink alcohol from drinking alcohol. Where there is a will there is a way, simple.

Shukarno, though, has decided that it would be best just to get the punishment over and done with so that she can go back to living her life. And, she hopes that others learn from her experiences and refrain from drinking alcohol (or more specifically from getting caught).

The caning methods are set out here. It would appear that in many ways that the caning is as much symbolic as it is meant to cause pain in this case. Although, most canings I have read about talk about causing open wounds that leave nasty scars on those who are on the receiving end of the caning. This though is allegedly not the case here. Shukarno will be clothed, the cane will be shorter than usual, and the person doing the caning cannot raise the rattan above their head.

I wonder if there will be video of the sentence being carried out that will make its way onto YouTube or something. If you can get video of Saddam Hussein's hanging onto YouTube, then one would think the caning of a model should be easy.

Justitia -- Lady Justice

Justitia or Lady Justice (photo from here) as she is sometimes called represents the power of the courts (through her sword), the need to balance competing interests (scales), and the equality of law (through her blindfold). Lady Justice has not always worn a blindfold.

However, despite the ideals that Justitia aspires to, it is interesting to contrast this with the writings of Anacharsis (Scythian - Ancient Iranian) in the 6th Century BC, who wrote:

Written laws are like spider's webs; they will catch, it is true, the weak and the poor, but would be torn in pieces by the rich and powerful.

(Plutarch Parallel Lives 'Solon' bk. 5, sect. 2. Cf. 319:19)

The interesting issue for me relates to my previous post on Prita Mulyasari and whether justice is really blind to those events that unfold around it?

Maybe it is time for me to get back into the practice of law...

Robin Tampoe -- One Time Corby Lawyer -- Struck Off

This is Schapelle Corby related news. However, the main subject of this little post is Robin Tampoe; a one-time lawyer for Schapelle Corby.

Robin Tampoe (photo courtesy of here) became involved in the Corby case very early on. He provided pretty bad advice, in my opinion, because his own ego required that he piggy back on this case in order to make a name for himself by using someone else's legal predicament to further his career. Unfortunately, or perhaps fortunately, this has backfired in a big way and has in fact ended his legal career as he has been struck off the role of legal practitioners.

The advice was indicative of someone not knowing the intricacies of the Indonesian legal system and also highlighted a substantial lack of understanding of the substantive law that applies in Indonesia. In this sense, the writing was on the wall for Corby as soon as Tampoe became involved. However, the advice is not the reason for his striking off, but rather his conduct as a lawyer and handling of client information.

It was certainly a Forrest Gump kind of a moment in the type "stupid is as stupid does". Simply, Tampoe came into possession of confidential information which he then divulged to the world on TV. This information related to prior criminal convictions among members of the family. After being dumped from the Corby legal team he then went on to add insult to injury by disparaging them in the documentary, "Schapelle Corby - The Hidden Truth", by calling the family "trash".

The Legal Services Commissioner initiated the action based on an allegation that Tampoe breached client confidentiality. In essence, he failed to uphold the lawyer - client privilege that certain communications are subject to. In a written judgment of Justice Roslyn Atkinson of the Queensland Legal Practice Tribunal, Tampoe was found guilty of professional misconduct. Atkinson then ordered that Tampoe be struck off the roll.

On a side note. It is interesting to see that in the current Manohara case two of Indonesia's senior lawyers, Todung Mulya Lubis and OC Kaligis, have left the legal teams of Prince Tengku Temenggong Mohammad Fakhry and Manohara Odelia Pinot respectively, and then gone on to make some disparaging remarks about their former clients relating to their respective intents to resolve that matter. I wonder, any ethics or professional misconduct issues there?

The Law and Online File Sharing -- An Australian Example

This case is really interesting for a number of reasons, but paramount among these is that of a law being designed for a particular purpose being literally interpreted and nabbing an unlikely victim. Law enforcement in Australia is generally pretty good. Like all other places there are times when one shakes their head in disgust or disbelief at how laws are interpreted and applied. This might just be one of those occasions where statutory interpretation goes a little bit awry.

Chris Illingworth, a seeming harmless 61-year-old from Maroochydore in Queensland has been charged with distributing child abuse materials over the internet (video capture of the event and inset of Illingworth from here). Illingworth came across a video of a man swinging a child by the arms and thought it worthy of being republished on Liveleak (video sharing site). The man and child in question are part of a circus troupe form Russia (or at least that is the belief) and perhaps this is what the Russians do, start the training of their youngsters and future circus performers at a very young age.

It must be noted that Illingworth has no criminal history relating to child abuse of any kind. An extensive search by police of his home and his computers turned up no images that would violate any provisions of current law.

The video certainly shows the child being swung around. There are probably arguments to be made for and against how violent the swinging is. However, the video ends with a smiling and laughing child.

Where this gets a little scary is the involvement of "experts" who get to offer opinions based on watching a video and through no interview of the alleged victim. In this case the police called in a specialist pediatrician, Susan Cadzow, from Royal Brisbane Children's Hospital. Now, in Cadzow's expert opinion this video represents child abuse and although no injury appears apparent this is irrelevant as there might be hidden injuries that will not manifest until some later time.

If police are going to charge people for this and then the Office of Public Prosecutions is going to proceed with a prosecution, then Australians should be forewarned and thus forearmed that the long arm of the law is gunning for you with seemingly endless powers of interpretation. The law though is helpful to the police as child abuse material "is, or appears to be, a victim of torture, cruelty or physical abuse" where the victim is appears to be under the age of 18.

What is helpful to police about this definition is that it does not require actual abuse to be taking place, it just has to be perceived as abuse and the police can take action.

This begs the question, would a video of say a child contortionist undergoing training and being videoed and then this video is uploaded to the internet constitute child abuse? Or even where the contortionist is performing for money, wouldn't this be child exploitation and subsequently abuse?

So, what were the police thinking in this case and why did they decide to proceed?

It seems that Illingworth is going to become an interesting test case. Although, I am sure Illingworth would rather not be the centre of any test case. Unfortunately, for him this is what he has become.

The case will certainly set a precedent, at least in the Australian jurisdiction, as to what constitutes child abuse and the enforcement of the provisions as they relate to viewing and uploading child abuse material. If the prosecution succeeds on this, then Illingworth is potentially looking at doing up to a maximum of ten years in prison for uploading a couple of circus performers, one of who was under the age of 18.

Scary.

The Future of Indonesian Law

The future of Indonesian law despite all the doom and gloom that many commentators talk about, is clearly not as doomy or gloomy as made out. Quite simply, the next generation of Indonesian lawyers and advocates are going to be highly-skilled, experienced in international forums (courts and tribunals), and able to hold their own against the best in the world. In fact, these Indonesian lawyers and advocates may just be the best in the world in their respective fields.

In some exciting news that I received late last night, the International Humanitarian Law Moot Team from the Faculty of Law at the University of Indonesia has won the International Law Moot Competition in Hong Kong. Excellent news!

Success in mooting competitions does not come easy. The team has reaped the rewards for the efforts that it has sown. The time sacrificed to participate is immense, but the rewards are equally large.

The competition was in English which in many ways makes the result even more impressive. Most law faculties do not infuse significant amounts of their respective curricula with English language subjects. So, to be successful in a competition of this size requires not only that the students develop and have excellent language skills, it also requires dedication to research, writing a pleading, and then being able to argue the case under intense questioning by judges.

Indonesia is new to the international law mooting game, but there has been increasing levels of success in recent years. This success is not only team-based, but also individual. In the most prestigious of law moots, the Philip C. Jessup International Law Moot Competition, Indonesia has already achieved extra-ordinary individual success by producing the best oralist in the world.

More success is certain. Yet, it is important to remember that this is a work in progress and has relied heavily on the commitments of a dedicated few, at least initially, who work tirelessly and often behind the scenes.

Success breeds success!

Congratulations to all involved who have made this happen. They have brought credit not only to themselves, but to the whole of Indonesia.

This is a well-deserved result and suggests that the future of Indonesian law is much brighter than many imagine it to be.

Durex -- Get It On!

Get it on indeed!

This is very funny (and no apologies if any of you, "my readers", are offended). In this day and age where abstinence is clearly not working, then a very funny condom ad is worth posting. There are a whole series of outtakes to the commercial which you can also find on You Tube.

I wonder if this would breach the provisions of the Indonesian Pornography Law?



Enjoy!

Breastfeeding - An Obligation for / on Indonesian Women

In order to increase the numbers of mothers who breast feed their children, the Minister of Health, the Minister of Labor and Transmigration, and the State Minister for the Empowerment of Women have issued a Joint Ministerial Regulation that sets out the provisions for women who are wanting to breast feed their children at the office and during office hours. This addition to the legislative framework was not entirely unexpected.

Interestingly, the regulation states that every mother is under an obligation to provide breast milk to their children. It is not entirely clear as to whether the government intends to sanction women who do not or cannot breast feed their children. I am guessing that they won't. Even more interesting is that the regulation states that there is a period of time where children are to be fed exclusively breast milk.

My understanding is that some mothers just do not produce enough milk themselves to satisfy the voracious appetites of their newborns or just are physically incapable of breastfeeding. For this reason the characterization of the need to breast feed and to do so exclusively would seem to unnecessarily stigmatize those that cannot.

The premise of the regulation is that breast milk and breast feeding are crucial to the physical, mental, spiritual, and intellectual development of children. The spiritual angle is an intriguing one. I guess if breasts are your thing then it is possible that the experience might be a spiritual one for you. However, I am not sure that it is all that spiritual an experience for a new born.

Furthermore, it seems that the Ministers have collectively realized that most Indonesian office environments are not very new mother or family friendly. And, if the government is going to characterize breast feeding as an obligation on women then it makes good sense to put into place legislation that allows for this obligation to be met.

Under the regulation each of the Ministers is tasked with specific functions. For example, the State Minister of Women's Empowerment is tasked with socializing and providing knowledge to new mothers regarding the benefits of breast feeding. The Minister of Labor and Transmigration, for example, is tasked with working with employers and employee representatives with a view to establishing guidelines and agreements to facilitate the opportunity for nursing mothers to breast feed at the office and during office hours. The Minister of Health is tasked with creating and implementing training and education programs for new and nursing mothers.

For employers and employees the impact of this regulation conceivably has some wide-ranging and long-term impacts on office life in Indonesia. Initially, it would seem that employers are going to have to incur some costs in setting up designated spaces in order for employees who are new or nursing mothers to fulfill their breast feeding obligations.

Therefore, it seems a foregone conclusion that work environments are going to become increasingly more family friendly. This might lead to the establishment of in-house child care facilities so that mothers do not have to take considerable chunks of time out of the office to go home and feed their newborns. With Jakarta's notoriously nasty traffic it is likely that for a mother to leave the office, go home, feed their child, and get back to the office, maybe three or four hours have been lost.

Employers, rather than incur the expense of a more family friendly environment, will be more likely to marginalize female employees who get pregnant by restructuring the work environment so that when the period of maternity leave is finished there is no position for the new mother to return to. It will be interesting to see how the Ministers and the government deal with this kind of eventuality.

So, in that sense the regulation is interesting on a number of different levels, as it opens the doors to all sorts of possibilities. Some good and some not so good possibilities could arise in the future. Therefore, it is reasonable to expect that there might be more legislative developments in this area before the year is out.

Finally, this post lends itself to the gratuitous posting of a picture.

Damaged Roads

It is being reported that the Public Works Agency of Jakarta is planning to repair some 211,000 sqm of roads in the capital in the first six months of this year. This gets me wondering about just how many sqm of roads are damaged and in need of repair. This is because records state that the Public Works Agency reported repairing more than 400,000 sqm of roads during the past 12 months.

It seems that the priority is going to be the main thoroughfares first. This is probably a good idea. However, it is of limited value to someone like me who lives in the suburbs.

But, I guess if the Public Works Agency manages to fill in some of the potholes and prevent accidents then this has got to count for something. Nevertheless, it is a case of doing it right the first time in order not to have to repeat the same shenanigans over and over again after each rainy season. It is a simple philosophy really!

I have also been wondering of late, how many accidents are attributable to roads that are in a state of disrepair and whether this constitutes negligence on the part of the government of Jakarta? And, if it does can citizens sue the government for this negligence?

Life in Jakarta.

Domestic Servants -- Legal Protections?

Overview

The Draft Bill on the Protection of Domestic Servants intends to formalize a type of work that was always a part of, and currently remains, the informal employment sector. The rationale is that while these types of domestic service remain a part of the informal employment sector then these workers are potentially subject to abuse and have little or no protective mechanisms to support them when their employment situation turns bad.

Human Right to Work
The government characterizes work as a human right and one that is to be protected. Work is to be a situation where you are paid in accordance for the value of your work and at a level equal to your skills and capabilities. The Draft Bill is explicit that this is to happen without discrimination. The 1945 Constitution of the Republic of Indonesia after amendment includes a basic “Bill of Rights” and among those rights is a right to work.

Therefore, this Draft Bill is intended to give some effect to that right and to ensure that adequate protections are in place for this right to work to be fully realized. The relevant articles of the Constitution are:
· Article 5(1);
· Article 27(2);
· Article 28A; and
· Article 28D(2).

Two Concurrent Versions of the Draft Bill
There are currently two versions of the Draft Bill in circulation. The first is a Non-Governmental Organization version and the second is a Government version. The version here is the government one.

The government version provides an explanation in the Elucidation as to why the term “pekerja” has been chosen in preference to “pembantu”. Generally, in the context of the home, pekerja would translate to domestic servant. In contrast, pembantu would translate to maid or more specifically, house maid. It is clear from the title of the Draft Bill that the term is intended to be the broader and all encompassing pekerja rather than the more restrictive pembantu.

Features
The most striking feature of the Draft Bill is that it will require all domestic servants to be employed based on either a written or oral work contract that guarantees some basic rights such as:
· to be treated humanely;
· welfare;
· health;
· work safety; and
· any other rights included in the work contract.

This is a striking feature because it is rare if not unheard of that domestic servants are employed on anything other than a basic verbal agreement. These oral contracts are difficult to enforce and general offer little or no protection for domestic servants. This very much leaves a domestic servant at the whims and discretion of their employer. It is interesting that the Draft Bill maintains these oral contracts.

However, in terms of contracts between the end user and domestic servant placement agencies, these contracts must be written and clearly set out the rights and obligations of each of the parties.

These features are contained in Article 3 and unfortunately the Elucidation to this Article states no more than it is “self-explanatory”. For example, is the entitlement to health to be evidenced by the employment taking out health insurance on behalf of the domestic servant?

It is clear that the socialization process needs to address some of the specifics of the protections to be afforded. Simply, without greater clarity in terms of what health, welfare, and work safety entail then both compliance and enforcement will be subjective and difficult.

Scope
The scope of the bill is all domestic servants and not just house maids. The provisions cover the following individuals, among others:
1. house maids;
2. caretakers;
3. baby sitters;
4. nannies;
5. governess;
6. gardeners;
7. personal drivers;
8. private security; and
9. private tutors.

The types of employment covered are both live-in and live-out, but all have some relationship to the maintenance of the home or a home environment.

Direct and Indirect Recruitment
The provisions of the Draft Bill cover both privately recruited domestic staff and those recruited and placed through agencies.

Article 5 expressly states that the employment of a child requires the written permission of the parents or guardians of the child. In difficult economic times it seems very likely that this permission will be easy to obtain as parents and guardians will see their 15 – 17 year old children as a source of income. This particular provision appears to run counter to Indonesia’s stated commitments to the protection of the interests of children through to the age of 18.

The Draft Bill sets out the minimum requirements that must be met during the recruitment process in order for an individual to be employed as a domestic servant. These requirements, among others, include:
· possess a self-identity;
· be at least 18 years of age;
· where the age is between 15 and 17, recruitment is for specific purposes;
· the existence of an agreement between the employer and the domestic servant; and
· possess the requisite skills for the work envisaged.

Minimum Age and Child Labor
Interestingly, the Draft Bill seems to set the minimum age limit for domestic servants at 15. Article 6 explicitly states that it is prohibited to employ anyone under 15 as a domestic servant. At 15 one is still a child and this would seem to be legislating positively for the legitimizing of child labor.

Although the Draft Bill seems to modify the work that 15 – 17 year olds can do to “specific tasks” and be limited to four hours of work. And, as noted previously the child can only be employed after the permission of the parents or guardians of the child has been obtained.

Rights and Obligations
The Draft Bill sets out the rights and obligations that domestic servants must enjoy. These rights include:
· the right to a reasonable wage;
· a right to know the type of work that they will be doing;
· an allowance of one month’s salary for their relevant religious holiday;
· weekly and annual leave;
· a right to add knowledge and a right to access information within the framework of improving work productivity;
· a right to communicate and to receive communications from their family;
· an opportunity to organize or unionize;
· breastfeed any children that they have;
· an opportunity to practice their faith;
· a right to maternity leave;
· a right to occupational health and safety (inclusive of reproductive rights);
· a right to not be subject to violence; and
· a right to three sets of clothes annually.

The obligations include:
· to perform their work in accordance with the work contract;
· maintain morality and security in their place of work;
· maintain the good name of the family and protect any confidential family information that they may obtain;
· notify within at least 15 days of any intent to resign;
· complete all work properly; and
· assist in the maintenance of the peace, harmony, and security of their place of work.

The Draft Bill also sets out the rights and obligations for both the employer of a domestic servant and also the rights and obligations for domestic servant placement agencies. For example, the employer of a domestic servant has a right to obtain information on the domestic servant employed. Unfortunately, the Elucidations to this Article provide no insight as to what this information might be. Nevertheless, this information presumably includes such things as the name and age of the domestic servant as well as such information as a home address and previous work history (if any), among other information.

Domestic servant placement agencies have a right to receive payments for their services in providing domestic servants to an end user or employer. The size of any fee is to be stipulated in the written agreement that is to be signed by both the placement agency and the employer.

Termination of Work Contracts and Wages
A work contract can terminate for any number of reasons. However, some specifics are listed in the Draft Bill. These include the death of the domestic servant (and presumably the employer), the period of the work contract has expired, a situation arises that is outside the ability of either party to overcome, and by mutual consent, among others.

If the domestic servant wishes to sever the employment contract, then the domestic servant is to provide 15 working days notice of their intention to do so.

The Draft Bill envisages that the minimum wage for domestic servants is to be set by Provincial Governments, Municipalities, and Cities in accordance with the economic conditions of the respective locations. In addition, the Draft Bill provides that the employer and the domestic servant can agree to any other incentives that they wish.

Work Hours and Leave
The drafters have realized that setting any specific times for work negates the reality that is domestic work; simply the only way to regulate time is on a flexi-time schedule with a maximum number of hours per day that may be worked. The maximum number of hours per day has been set at ten.

In terms of leave, a domestic servant is entitled to one day off per week. Presumably this day is by mutual consent of the domestic servant and the employer. This is in addition to a mandatory minimum six hours of rest per day. Interestingly, this six hours of rest does not seem to be a continuous six hours but potentially it could be in one hour lots or similar.

A domestic servant becomes eligible for 12 working days annual leave once they have worked for the employer for 12 consecutive months.

Dispute Resolution
Any dispute is to be resolved by negotiation between the parties in conflict. If this negotiation does not reach a settlement that is mutually agreed by the parties, then the dispute is to be resolved by involving the Neighborhood Head (Rukun Tertangga / RT) and the Community Head (Rukun Warga / RW). If the involvement of the RT and RW fail to get the parties to reach a mutually acceptable settlement, then the parties can then escalate the dispute to the courts.

The reality is that these provisions as they relate to dispute resolution seek to redress the power balance between the employer and employee (domestic servant). Traditionally, domestic servants have had very little power and have generally been at the whim of their employer. The option of alternative dispute resolution and, if need be, the courts mean that domestic servants will have some legal protection from arbitrary actions of their employers.

Supervision
It is expected that primary supervision will be by the relevant service division of the Department of Labor and Transmigration. It is also envisaged that the RT and RW will play a role in the supervision on a much more local level.

Sanctions
The basic sanctions in the Draft Bill are administrative in nature and cover breaches of Articles 11, 13, and 17. The sanctions include written warnings, temporary suspension of the activities of placement agencies, cancellation of licenses, and the cancellation of work contracts, among others. However, it is expected that additional sanctions will be included through specific Ministerial and Regional Regulations.

Enactment
The Draft Bill will come into immediate force on its enactment.

Conclusion

It is clear that the government is intent on providing enforceable protections for domestic servants. It is also clear that in order to achieve this there is a need to formalize the employment situation from its current informal nature.

However, there appears to be some serious shortcomings if the intended purpose is to take these types of work from the informal to the formal. For example, it would make sense that the work contract between the domestic servant and the employer is in the written form. This would ensure that there are better prospects for enforcement in the event that the employment relationship breaks down.

Nevertheless, the intention is an honorable one.

The Draft Bill is currently in the socialization phase. It is expected that there will be considerable input from various stakeholders and therefore the final version of any bill that reaches the House of Representatives to work through the Commission and Committee processes prior to any enactment is destined to be quite different from the current versions.

Postscript

By way of explanation. This is a revised copy of something I have written for some other purpose. Perhaps some will be interested in the substantive matter that it covers and some won't be interested at all. Nevertheless, I guess if you live in Indonesia and have the luxury of any of these domestic services such as a house maid or two, drivers, gardeners, and the like then the draft bill is likely to be of some interest to you.

We have a domestic servant, a house maid. She is excellent. She works hard and is reliable. however, having read through the provisions she seems to be on a pretty good thing already working for us. Her salary is above average and once she has done the obligatory chores then her time is pretty much her own. Like for example tonight, she asks if she can stay the night with some family who live near by. We have no problem with that and so off she goes.

Provided there are no significant changes to the basic provisions of the draft bill then we are already in compliance. So, perhaps we can tighten the screws a little and make the conditions our house maid works under to comply with the absolute minimum.

Just kidding!